DISORDER IN THE COURT

By Celia Cohen
Grapevine Political Writer

Delaware's congressional delegation is so collegial
that the three members often send out a single press
release, but there appears to be a drift from the normal
consensus in the choice of a new judge for the U.S.
District Court.

Furthermore, it was encouraged by the White House.

The federal court in Wilmington has been down one of
its four judges since Kent A. Jordan moved to the U.S.
3rd Circuit Court of Appeals in mid-December. It is up
to President George W. Bush to nominate a replacement,
who must be confirmed by the Senate for a lifetime
appointment.

The Bush administration asked Rep. Michael N. Castle,
its lone fellow Republican in the delegation, to
recommend a list of judicial candidates -- the same
procedure it followed when the last vacancy in 2002 went
to Jordan, but this time it did not stop there.

Instead, shortly before Christmas, the White House
turned to U.S. Sen. Joseph R. Biden Jr. and U.S. Sen.
Thomas R. Carper, both Democrats, to solicit
recommendations from them, as well.

It was an unusual step, and it is unclear whether the
Bush administration simply was facing the political
reality of having the Senate now in Democratic hands
with Biden as a senior member of the Judiciary
Committee, or whether it has something to say about the
the White House's relationship with Castle, a maverick
whose stem cell research bill is the only legislation
Bush has vetoed.

Castle did not seem entirely comfortable with the
situation, although he downplayed it.

"I'm very protective about the Delaware judiciary, so
I'm not about to play games," said Castle, an
ex-governor accustomed to selecting judges. "As far as I
know, there are no rules on this. I'm not sure we don't
need to develop a new methodology."

Carper, also a former governor, minimized it, too. "I
think they're [Bush administration] just being polite
and acknowledging there has been an election," he said.

Castle compiled his list and submitted it in late
February, according to Jeffrey A. Dayton, the
congressman's district director. Although it was not
made public, there are said to be four names, all
Republicans, not ranked in any order of preference.

Castle ran his list by Biden and Carper, but they
decided to take up the White House's offer to suggest
their own candidates. The Constitution does say senators
are entitled to give advice and consent, after
all.

There has been no determination yet whether Biden and
Carper will combine their recommendations in one list or
send their preferences separately.

Intermediaries for the senators have been prospecting
for candidates, most notably among the judges of the
state Court of Chancery and the Superior Court, but
there does not appear to be much interest for a number
of reasons.

Democratic judges think this White House will not
consider them. Patent cases, central to the district
court's docket, almost universally are regarded as
eye-glazing. In addition, there would be a pay cut,
because a federal judge's salary is $165,200 a year,
while the Chancery and Superior Court judges get at
least $168,100 a year and as much as $185,000 a year
with more regular raises.

The biggest deterrent of all, however, is a
little-known state law that says state judges must
forfeit their state pensions, including survivor
benefits for spouses, if they switch to the federal
court.

The upshot is an uneasy state of affairs, and it
could become even more so, depending on what the Bush
administration does next.

It already downgraded Castle's role. If it does not
mind taking its chances on confirmation, it could ignore
whatever Biden and Carper want, too.